G.R. No. 115689




Manila SECOND DIVISION G.R. No. 115689 June 30, 1997 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LINO ARTIAGA, accused-appellant. MENDOZA, J.: This is an appeal from a decision of the Regional Trial Court, Branch 2 of Tagum, Davao, convicting accused-appellant Lino Artiaga of murder and sentencing him to reclusion perpetua. The information filed against him read: The undersigned accuses LINO ARTIAGA of the crime of Murder under Article 248 of the Revised Penal Code, committed as follows: That on or about July 9, 1991, in the Municipality of Pantukan, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with treachery and evident premeditation, with intent to kill, armed with a kitchen knife, did then and there wilfully, unlawfully and feloniously attack, assault and stab one Benjamin Serquiña, thereby inflicting upon him a wound which caused his death, and further causing actual, moral and compensatory damages to the heirs of the victim. Contrary to law. Tagum, Davao, Philippines, August 30, 1991. During the trial, the prosecution presented Ernesto Ductama who testified that on the night of July 9, 1991 he went to attend a meeting of the Gumayan de Mano Mining Association. As the meeting scheduled at eight o'clock that night was not held, he decided to go home. He walked along a trail together with the victim Benjamin Serquiña, Pedencio Amante (who was carrying an improvised lamp) and Albert Gonzales. He saw accused-appellant Artiaga approaching. Accused-appellant came from the creek. According to the witness, as soon as accused-appellant got near Serquiña, accused-appellant placed his right arm over the shoulder of the victim, thrust a knife on the left breast of the latter and then ran away. Serquiña cried that he had been stabbed. Ductama and his companions went to the aid of the victim. Ductama removed the knife from the victim's breast and, with the help of Amante and Gonzales, carried the victim to the side of the road. He and Gonzales went after Artiaga, leaving Serquiña to the care of Amante. Fifteen minutes later, they were told by Amante that Serquiña had died. The three took the body of the deceased to his house thirty meters away and later continued the search for the accused until one o'clock in the morning. It was not until the next day, however, when accused-appellant was found panning gold in the creek along the mountain and apprehended. The prosecution also presented Dr. Evangeline D. Hornido, Medical Officer IV of the Pantukan District Hospital at Davao. She testified that on July 10, 1991, she examined the dead body of Benjamin Serquiña and found a wound on his chest which penetrated his heart, causing his instantaneous death. She also affirmed a death certificate she had earlier given. After the prosecution had rested its case, the defense presented as witness Emeterio Geonzon, a gold panner, who claimed he was panning gold with the accused-appellant when the stabbing incident took place. Geonzon testified that at around six o'clock in the evening of July 9, 1991, he passed by the store of Edita Bacalso at Sitio Tae, Gumayan, Pantukan, Davao. Inside the store drinking were accused-appellant Lino Artiaga and several companions, while outside the store, also drinking, were deceased Benjamin Serquiña together with Yoyoy (Pedencio Amante) and Albert Gonzales. At about eleven o'clock, he and Artiaga went to the nearby creek to pan gold. Later on, Benjamin Serquiña, Yoyoy and Albert arrived. According to Geonzon, when Serquiña saw Artiaga, Serquiña pointed him to his companions, remarking, "Bay, here is the one we are looking for." Then, addressing Artiaga, Serquiña said, "Make haste with your work because I will use the gold." But Artiaga replied, "This might be through by tomorrow yet because it is only now that I have placed it here." 1 This angered Benjamin Serquiña who yelled and ordered him, "You hurry up because I will use the money because I will be remitting it tomorrow." 2 After uttering these words, the victim allegedly picked up a stone and tried to hit Artiaga with it. But, according to Geonzon, Artiaga was able to duck the blow. As Serquiña picked up another stone, Artiaga, having nowhere to retreat to, stabbed Serquiña on the chest. After this, the witness testified, he and the accused-appellant fled. The witness Geonzon claimed that the prosecution witness Ductama was not present during the actual stabbing. 3 Accused-appellant Lino Artiaga testified next. He gave substantially the same version of the incident as his witness Emeterio Geonzon. His testimony is different from that of Geonzon, however, with regard to the time when they panned gold in the canal. According to the accused-appellant, they stopped their drinking and went to the canal before it started to rain between seven o'clock and eight o'clock. 4 Geonzon, on the other hand, testified that he and accused-appellant went to pan gold after the rain had stopped and that was after eleven o'clock. 5 On April 23, 1986, the trial court rendered a decision, the dispositive portion of which states: WHEREFORE, this Court finds accused Lino Artiaga guilty beyond reasonable doubt of Murder under Article 248 of the Revised Penal Code and after appreciating the generic aggravating circumstance of nighttime against him, he is hereby sentenced to suffer the penalty of Reclusion Perpetua, to suffer the accessory penalties provided for by law [and] to pay the costs. The accused is further ordered to indemnify the heirs of Benjamin Serquiña in the amount of FIFTY THOUSAND (P50,000.00) PESOS. Given this 10th day of December 1992 at Tagum, Davao, Philippines. Hence, this appeal. As already stated, accused-appellant's claim is self defense and, in his appeal, he contends that the trial court erred in not acquitting him on this ground. Accordingly, the burden is on him to show the elements of self defense, to wit: 1. Unlawful aggression; 2. Reasonable necessity of the means employed to prevent or repel it; and 3. Lack of sufficient provocation on the part of the person defending himself. First. The defense claims that there was unlawful aggression because Serquiña tried to hit accused-appellant with stones. However, the evidence of the defense is inconsistent and very doubtful. During his cross examination, defense witness Emeterio Geonzon testified that he did not see accused-appellant but only heard him and his companions talking while they were drinking inside the store of Edita Bacalso, because he (Geonzon) was just passing by, on his way to pan gold at the creek. It was accused-appellant who saw this witness and went with him to the panning area. This testimony is inconsistent with the affidavit executed by Geonzon before the Public Attorney's Office on August 28, 1991, wherein he stated that he was with Lino Artiaga in the store of Edita Bacalso, drinking tuba with six other friends. 6 His excuse that he had forgotten what he had stated in his affidavit because it had been a year ago only shows that his testimony was false, because had he known he had said he was with the group he would not have said he was not with them in his testimony in this case. If he was telling the truth, he could not have forgotten whether or not he was with the accused-appellant when the latter and others were in the store drinking. A witness who makes two sworn statements (an affidavit and testimony before the court) which are contradictory impeaches his own credit. Geonzon also testified that Artiaga did not die instantly but was able to run some distance. 7 However, his succeeding statements contradicted this because he said that after the stabbing, ". . . I don't know what happened anymore because the light was put off and I also ran away." 8 As we have noted earlier, although the testimony of the accused recounted the same version of the incident as that narrated by Geonzon, there was also an inconsistency between these two testimonies regarding the time when Artiaga and Geonzon allegedly went to the creek to pan gold, whether it was before or after it had rained on July 9, 1991. Considering the inconsistencies in their testimonies, the trial court was right in observing that the testimonies of accused-appellant and his witness Emeterio Geonzon "do not deserve belief even on minor matters." 9 There is thus no evidence to show that the deceased was guilty of aggression to justify accused-appellant's aggression in repelling it. Second. Granting arguendo, that the victim really tried to hit accused-appellant with a stone, the use of a knife to stab the victim, who was unarmed, cannot be deemed a reasonable means of repelling the aggression. Accused-appellant claims that he was forced to use his knife because there was no place to which he could retreat. But the protagonists were supposed to be near the creek. Accused-appellant does not explain why he could not have retreated or why his back was against the wall and he had to stand his ground. Indeed, it is even more difficult to imagine why he found it more expedient to use his knife to repel the aggression if, as he claims, his victim was hurling a stone at him because this means that he was not fighting his alleged assailant at close quarters. Citing People v. Encomienda, 10 accused-appellant contends that he stabbed the victim on the chest as an instinctive response of a person in an emergency situation. The reasonableness of the means is nevertheless a requirement even if the person merely acted in obedience to the instinct of self-preservation as a response to an attack against his person. "[W]hen no necessity existed for killing the deceased because less violent means could have been resorted to, the plea of self-defense must fail." 11 Thus in the early case of United States v. De Castro, 12 it was held that although the deceased was guilty of an unlawful aggression, the accused could only be given the benefit of incomplete self defense because he "exceeded the limits of the necessity of the defense in using the dagger he carried, and with it inflicting a mortal wound upon the deceased" who was armed with a cane. Third. Self defense also requires that the person defending himself is not himself guilty of provocation. But in this case, that the accused-appellant was actually the aggressor is shown by the fact that he was armed. Had it been his purpose to pan gold in the creek at that time, it would have been reasonable to expect him to have a lamp especially because it was then raining and it was impossible that the moon was shining as he claimed. 13 In fact, the victim and his three companions had a lamp to light their way home. That the accused-appellant was near the creek when it was dark and that he was armed with a knife can only indicate that his purpose in being there was to waylay Serquiña. As the trial court observed, it was unusual that accused-appellant had a knife when to pan gold one needed coconut shells. He said he had a knife because he was going to the place alone. But the fact is that he had no less than three companions that night, including his witness Emeterio Geonzon who allegedly went with him to pan gold. The trial court then correctly gave no weight to the version of the defense. Aside from being replete with inconsistencies, the evidence for the defense is incredible and cannot pass the test of simple logic. As the trial court reasoned — Who can believe that the victim who was holding a stone, instead of using it to repel the attack, just waited for the accused to approach him thereby giving him the opportunity of inflicting the fatal wound in his left chest? Who in his right mind can believe that the victim merely dropped the stone behind him when he was stabbed when he could have dropped it more conveniently in front of him hitting the accused and the fight would have, at least, been even? Indeed, having admitted killing the deceased, the burden of proof was on him to establish all the elements of self defense.ℒαwρhi৷ 14 "[O]ne who admits the infliction of injuries which caused the death of another has the burden of proving self-defense with sufficient and convincing evidence. If such evidence is of doubtful veracity, and it is not clear and convincing, the defense must necessarily fail." 15 We are, therefore, constrained to affirm the trial court in convicting the accused of the crime of murder. However, we find the evidence on record insufficient to prove evident premeditation. This circumstance qualifies killing to murder if the following elements are proven: (1) the time when the offender determined to kill his victim; (2) an act of the offender manifestly indicating that he clung to his determination to kill his victim; and (3) a sufficient lapse of time between the determination and the execution of the killing. In this case, the testimonies presented do not sufficiently support the allegation that the accused killed the deceased pursuant to a preconceived plan. The fact, however, that the attack was sudden and made by the accused-appellant in the dark when his victim, who was unarmed, did not expect it, makes the crime murder qualified by treachery. Nighttime is absorbed in treachery and cannot be appreciated as a generic aggravating circumstance as did the trial court. 16 The crime in this case was committed before the effectivity of R.A. No. 7659 reimposing the death penalty. As such it is governed by People v. Munoz, 17 in which this Court clarified that §19(1), Art. III of the Constitution did not abolish the death penalty but merely suspended its imposition. Therefore, conformably to People v. Muñoz 18 and subsequent cases, 19 where the crime of murder is committed without any aggravating or mitigating circumstance, the imposable penalty is reclusion perpetua, which is the medium period of the penalty prescribed by Art. 248 of the Revised Penal Code. WHEREFORE, the decision appealed from is MODIFIED and accused-appellant Lino Artiaga is hereby found GUILTY beyond reasonable doubt of murder qualified by treachery, without any generic aggravating or mitigating circumstance, and is SENTENCED to suffer the penalty of reclusion perpetua, together with the accessory penalty provided by law, and to PAY the costs. The accused-appellant is further ORDERED to INDEMNIFY the heirs of Benjamin Serquiña in the amount of P50,000.00. SO ORDERED. Regalado and Romero, JJ., concur. Puno and Torres, Jr., JJ., are on leave. Footnotes 1 TSN, p. 7. Sept. 10, 1992. 2 Id., p. 8. 3 Id., p. 9. 4 TSN, p. 5, Sept. 14, 1992. 5 TSN, p. 5, Sept. 10, 1992. 6 Id., pp. 17-18. 7 Id., p. 20. 8 Ibid. 9 RTC Decision, p. 5; Rollo, p. 12. 10 46 SCRA 522 (1972). 11 People v. Capoquian, 236 SCRA 655 (1994). 12 Phil. 67 (1903). 13 TSN, p. 11, Sept. 14, 1992. 14 People v. Ganzagan, Jr., 247 SCRA 220 (1995). 15 Cantos v. Court of Appeals, 234 SCRA 375 (1994). 16 People v. Abitona, 240 SCRA 335 (1995). 17 170 SCRA 107 (1989). 18 Ibid. 19 E.g., People v. Amigo, 252 SCRA 43 (1996); People v. De la Cruz, 216 SCRA 476 (1992); People v. Parojinog, 203 SCRA 673 (1991). The Lawphil Project - Arellano Law Foundation